VIOLET: Law & Abused Women - JUST THE FACTS

Once you are out of the family home with the children, issues might arise as to the custody of the children. Custody is the responsibility for day to day care of children. In normal circumstances both a mother and father have equal rights to the custody of their children. If you leave and take the children, there are two possible courses of action that your partner might take using criminal law or family law:

He might make a complaint to the police that you have abducted the children.
He might start a legal action for custody of the children.

C2. How can I be accused of abducting my own children? (July 14, 2003)

The law says that where there is no custody order in existence, it is a criminal offence for one parent to take children aged under fourteen from the other parent with the intention of depriving him of possession of the children. Whether the police would go ahead and charge a parent with abduction will depend very much on the individual circumstances of the situation, but the possibility does exist. Removing the children could also be an offence if it is against the terms of a custody agreement that already exists.

There is, however, a defence to any possible criminal charge. If you can show that you took the children away because the children or you were in immediate danger of being harmed or even that you honestly believed such a danger existed, then you may be able to resist criminal charges.

C3. How can I show that I felt the children or I were in danger of being harmed? (October 6, 1998)

It will be extremely important to have evidence to support your claim. If you are in an abusive situation, try to make some plans before you leave. Keep a record of when and how you or the children are abused. If you or the children are seeing counsellors because of the abuse, keep records of this also.

It will also be useful if there are any witnesses to the abuse. Even though you may think it is taking place in private, your friends and family may notice more than you think. Try talking to them to see if they can help.

C4. How can he apply for custody of the children when he is threatening to harm them? (October 6, 1998)

Even when parents separate physically, they both still have equal custody rights to their children until a court order says differently.

C5. What can I do in order to get custody of my children? (October 6, 1998)

It is very important that you deal with the issue of custody of your children immediately. This applies whether you take the children with you or whether you have to leave them behind with your husband or partner.

The only way in which you can legally obtain custody of your children is by asking for an order from a court that deals with family law. It is possible for you to do this by yourself, but in reality it will be quicker and easier for you to get advice and assistance from a lawyer or from an agency that specializes in family matters.

C6. Can he take the children away from me because I have no job and live in a shelter? (October 6, 1998)

If your partner commences an action to get custody of the children or if he contests an action that you start, a court will make the final decision about where the children should be. The court will take many things into account when making this decision, but the guiding principle is what is in the best interests of the children.

Of course it is hard for the children to be living in a shelter away from their home and especially difficult if you have no income. If you have left an abusive situation, however, and you can show that you and the children were in danger of being harmed, the court would be unlikely to put the children at risk by placing them back in the home.

C7. How will I be able to prove to the court that abuse took place when no one else ever witnessed it? (October 6, 1998)

It will be very important for you to tell your lawyer everything that occurred so that he or she can bring the facts to the attention of the court.

In order for you to remember everything, try making some detailed notes as soon as you can. Make a note of every time your partner abuses you or harasses you. Even though the incidents took place in private, your friends and family may have noticed more than you think and could be helpful witnesses. Try and remember times that you may have sought medical help or counselling as the hospital or crisis centre will have records.

Remember that the courts will need good reasons to give sole custody to one parent.

C8. Do we have to sort out custody by fighting in court? (July 14, 2003)

It is always possible for parents to agree that their children should live with just one parent. The agreement can be informal, but usually the agreements are put before the courts and made into court orders. If custody can be worked out by agreement and the court approves of the arrangement there is no need for arguments and fighting in court. The court will simply endorse the agreement made by the parents.

If you think that you can work something out by agreement with your partner, you can get help online or in person if you live in Edmonton or Calgary. In Edmonton and Calgary there are Family Law Information Centres in the main courthouse building in each city where you can get information, sample forms and booklets. Some of the forms and booklets are also available online at www.albertacourts.ca, follow the links through Court of Queen's Bench and Family Law Information Centre.

In a situation where the parents cannot agree about custody arrangements or where one party fears for the safety of the children, it will be necessary to persuade the court to make the appropriate order.

C9. How can I find a lawyer to help me? (July 14, 2003)

There are several ways that you can find a lawyer:

Lawyers are listed in the Yellow Pages and some may indicate if they specialize in family law.
You could ask your friends if they could recommend a person or a law firm.
The Law Society of your province will have a list of lawyers in your area practicing in the area of family law.
There may be agencies that can help you find a lawyer, for example, Calgary Legal Guidance.
Legal Aid can refer you to a lawyer practicing in family law. Legal Aid is available for custody issues.

Remember that you need a lawyer who practices in the area of family law.

C10. Do I need a lot of money to get a lawyer in order to get custody of my children? (October 6, 1998)

There are ways to obtain legal assistance when you have limited finances. Firstly, you may be eligible for Legal Aid. Legal Aid is a fund that will pay part or all of your legal costs depending on how much money you have.

Secondly, you can discuss payment with your lawyer and he or she may be willing to charge a lower fee or take payment by installments.

If you are planning to leave an abusive situation, it's a good idea to try and put some money in a secret emergency fund to use when you leave.

C11. How long will it take to get an order for custody? (October 6, 1998)

Although it can take anywhere between two months and two years to get a final custody order, the courts can grant an interim custody order quickly. For example, if you see your lawyer one afternoon, he or she can apply for the order the next morning. An interim custody order can give you temporary sole custody until the matter is finally resolved.

C12. Do I have to let him see the children even though he has threatened me that he will kidnap them? (October 6, 1998)

The parent that does not have custody of the children is normally given access or visiting rights by the court. The view of the courts is that normally every child has the right to see and associate with both parents. Exceptions can be made in a situation where it is likely that the child will face physical or emotional harm.

If you fear for the safety of your children you will have to tell your lawyer so that he or she can ask the court for special terms to be written into the custody order. Examples of terms that could be requested are

No access is given.
Any visits are to be supervised by someone like a social worker.
Times and places for visits are specified.

It is very important that the terms of the order be specific and clear. This is so that there is no confusion if the order is broken and it has to be enforced.

C13. What can I do if my husband or partner breaks the custody order? (October 6, 1998)

You can immediately go back to the court for help. The court can order the police to enforce the order. It is very important that the terms of the order be specific and clear, so that there is no confusion about what is being enforced. The police will also require very clear evidence that the order has been breached, so that once again it will be important to keep records and enlist the assistance of witnesses.

If someone resists or disobeys enforcement of the order they can be fined or sent to jail. The children will be returned to you if they have been removed in breach of the order.

C14. What if my husband kidnaps the children and takes them to another province? (October 6, 1998)

If your children are abducted you can report it to the police who can file a missing persons report and lay charges against the abducting parent. If your husband is acting in breach of the terms of a custody order you could also try to get the order enforced in the other province.

Once abduction charges are laid a Canada-wide warrant can be issued for the arrest of the abducting parent. This can mean that the child may be found and returned more quickly than if the provisions of the custody order in family court are relied upon. Enforcement of the terms of a custody order may require confirmation of the order by the courts in the province where the children have been taken. This procedure may take some time.

C15. What if my husband kidnaps the children and takes them to another country? (October 6, 1998)

If the children have been taken abroad it may be difficult to seek their return depending on the country. Some countries have signed an international treaty and will recognize and enforce custody orders made by courts in other countries if the children have not become too settled or will not be returning to a harmful situation.

Taking Your Children - Continued:

Interim Custody

July 2003